Uttarakhand High Court
Kirti Saran Agarwal vs State Of Uttarakhand And Others on 10 December, 2019
Equivalent citations: AIRONLINE 2019 UTR 625
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 3687 of 2019 (M/S)
Kirti Saran Agarwal ..........Petitioner
Vs.
State of Uttarakhand and others ...........Respondents
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J. (Oral) Heard Mr. Sudhir Kumar, learned Advocate for the petitioner, Mr. Anil Bisht, learned Standing Counsel for the State of Uttarakhand-respondent Nos.1 & 2 and Mr. C.K. Sharma, learned Advocate holding brief of Mr. Ashish Joshi, learned Advocate for respondent No. 3 and, with their consent, the writ petition is disposed of at the stage of admission.
2. The petitioner has invoked the jurisdiction of this Court seeking a writ of mandamus commanding the respondents not to construct any road over his plot No.177 in village Kamulaganza Narsinghtalla of Haldwani Tehsil in District Nainital.
3. This case has had a checkered history. The petitioner claims to have inherited plot No.177 from his mother Smt. Poonam Agarwal who, in turn, is said to have inherited the same from her maternal grandfather. Plot No.177, according to the petitioner, is of an extent of 4 Bigha, 14 Biswa i.e. approximately 0.297 Hectares, and is a part of his mother's holding. It is the petitioner's case that the Assistant Collector 1st Class, Haldwani, District Nainital had passed an order on 25.08.1988, without issuing any notice to his mother, under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act, declaring plot no. 177 as non-agricultural land, and to record the same, in the revenue records, as a public path; his mother submitted an application to set aside the order; the Assistant Collector-1st Class, Haldwani, District Nainital, by his order dated 26.06.1989, had recalled his earlier order dated 2 25.08.1988; the first-respondent had preferred an appeal before the Collector, Nainital against the said order; the Collector had, by his order dated 08.11.1989, allowed the appeal and set aside the order of recall passed by the Assistant Collector; aggrieved by the said order of the Collector, the petitioner's mother had preferred a revision before the Commissioner, Kumaon Division, Nainital who, by his order dated 10.01.1991, had made a recommendation to the Board of Revenue for allowing the revision, and for setting aside the order passed by the Collector; the Board of Revenue, however, dismissed the reference and restored the order passed by the Collector dated 31.10.1991; before the State of Uttarakhand was created, the petitioner's mother preferred a writ petition before the Allahabad High Court ie Civil Misc. Writ Petition No.40597 of 1993; this writ petition was transfered to the Uttarakhand High Court, and was renumbered as WPMS No. 885 of 2003; the said writ petition was allowed by order dated 05.09.2012 whereby the order of the Collector was set aside; the matter is now pending before the Assistant Collector, 1st Class, Haldwani, District Nainital; the application of some persons, to implead themselves, was allowed by the Assistant Collector by order 11.08.2017; and, on this order being subjected to challenge before the Board of Revenue, the said order was set aside by the Board of Revenue by its order dated 25.09.2019.
4. The petitioner further states that WPPIL No. 74 of 2018 was filed, by Mr. Satish Chandra Pandey, seeking construction of a road connecting Haldwani-Kashipur road to Haldwani-Rampur road; a Division Bench of this Court had, by its order dated 29.08.2018, directed the State Government to construct such a road; the funds, for construction of the road, has been released by the State Government to the Haldwani Nagar Nigam; the Nagar Nigam has, in turn, transferred the funds to the Rural Works Department for construction of the road; the proposed road is to be constructed over plot No.177 which is the property of the petitioner; and the dispute relating thereto is pending before the Assistant Collector, 1st Class, Haldwani, District Nainital.
35. The action of the respondents, in laying a road, is now under challenge in this writ petition. A Division Bench of this Court had, in its order in WPPIL No. 74 of 2018 dated 29.08.2018, referred to its earlier order dated 14.06.2018 granting the Chief Standing Counsel time to seek instructions; and had noted that the Chief Standing Counsel had submitted that the District Magistrate, Haldwani had asked for a proposal from the Executive Engineer, Rural Engineering, P.W.D for construction of the link Road connecting Haldwani-Kashipur to Haldwani-Rampur. The writ petition was disposed of with a direction to the District Magistrate, Nainital and the Executive Engineer (Rural Engineering) of the area, as well as the co-respondents, to ensure construction of the pucca road at the earliest, but not later than one month from the date of the order.
6. It is brought to our notice that, alleging non-compliance of the said order, contempt proceedings have been initiated; and these proceedings are still pending on the file of this Court.
7. Though the order, in WPPIL No. 74 of 2018 dated 29.08.2018, makes no reference to any particular plot of land on which the said road is to be laid, both Mr. Anil Bisht, learned Standing Counsel appearing on behalf of respondent Nos.1 and 2 and Mr. C.K. Sharma, learned counsel appearing on behalf of the third- respondent, would submit that the road, sought to be laid, is also over plot No. 177 which the petitioner claims to be the owner of. Since no order, contrary to the order passed by a Co-ordinate Bench of this Court in WPPIL No. 74 of 2018 dated 29.08.2018, can be passed by us, we may not be justified in directing the 3rd respondent, Nagar Nigam not to lay a road over the subject plot of land.
8. Since the petitioner's claim, to be the owner of the said property, is pending adjudication before the Assistant Collector, 1st Class, Haldwani, District Nainital for the past more than seven years from the date of the order in WPMS No. 885 of 2003 dated 05.09.2012, it is but appropriate that the District Magistrate, 4 Nainital directs the Assistant Collector, 1st Class to hear and decide the dispute pending before him with utmost expedition and, in any event, not later than three months from the date of production of a certified copy of this order.
9. The respondents herein shall identify and earmark the extent, which the petitioner claims to be the owner of i.e. plot no. 177, in his presence; and, thereafter, lay a road thereupon so that, in case it is found later that the petitioner is the owner of the said land, acquisition proceedings can then be initiated by the State Government, under the provisions of "The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013", for acquisition of the said land. As owners of land have the constitutional right, under Article 300-A of the Constitution of India, not to be deprived of their property except in accordance with law, it is made clear that any private land, over which a road is proposed to be laid, shall be acquired in accordance with the 2013 Act; and those, who are owners of the land, shall be paid compensation in terms of the said Act.
10. In so far as the petitioner is concerned, the process of acquisition shall commence only if, and after, the Assistant Collector, 1st Class passes an order holding that the petitioner is the owner of the subject land. We make it clear that we have not expressed any opinion on the petitioner's claim to be the owner of the land, since these all are matters for the Assistant Collector to examine in accordance with law.
11. The writ petition stands disposed of accordingly. No costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.) 10.12.2019 Sanjay /NEHA